What from the facts must be drawn by the jury, in a special ver- But there is a conclusion of fact from facts; and a conclusion of law from that fact. As for instance, 1 and 1 make 2, which are two facts, making one. But 2 and 2 make 4, which is a conclusion of fact from facts. : Again 1 and 1 make 2, which is a fact; but two are necessary to constitute a conspiracy, which is a conclusion of law three to make a riot, which is a conclusion of law also. So, whether an entry with force and arms, is an indictable offence, or a trespass merely, is a question of law. So that strictly speaking it is not a compound question, but two questions of a different nature, and one of which must be resolved before the other. If the question is put to the jury, they must resolve the question of fact first, in their own minds, in the order of resolving, and then draw the conclusion of law, which, if they find a general verdict, they must draw. If they give a special verdict, which in all cases they may do, they draw the conclusion of fact only, and need not go on to resolve the other question, viz. what is the law thence arising? But it is but one question at a time, they can resolve, and therefore the question is not compound:", save so far, as, that where the jury gives a general verdict, they solve both questions at the same time and by one answer. This has been the result of my investigation when I have endeavoured to analize, and ascertain what could be meant by a compound question. But in the case before us, that an abandonment must be made, to entitle to recover, is a question of law. That an abandonment must be made in reasonable time is a question of laro. But the jury having found the time, is it a question of law or fact, to draw the conclusion, and to say, whether or not that time was reasonable? The court say it is a conclusion of law, why not then draw it? why reverse the judg ment, and send it back to a jury, with costs, and the expence of a new trial? There appears to me an inconsistency in the proceeding. If, as the chief jrstice lays it down in another case, 6 Cranch, 339, " that what is reasonable time for abandonment, is a question compounded of fact and law, of which the jury must judge under the direction of a court," it is the only case that occurs to me where a reference to a distinct forum, cannot be had; the jury finding the fact, and leaving the law to the court. Reasonable time, in the case of an abandonment, and in that of a bill of exchange, or in any other case, must be the same. In the case of a bill of exchange, the jury in a special verdict finding the time, will not the court in England, as a question of law, draw the conclusion? If the jury must do it as a conclusion of fact, what have the court to do? What direction could a judge on the trial give, but that if you find so, and so, then, in our opinion reasonable time had passed. When the jury have found so, and so, cannot the court say reasonable time had passed within which an abandonment ought to have been made. This, considering it a question of law, and not of fact, as the court have laid it down. Notes relative to Judge Tucker's Commentary on the Constitu tion of the United States, &c. I HAVE not entered into an examination how far the constitution of the United States, and the acts of congress under it have wrought a variation in the jurisprudence of the state of Pennsylvania, from the law of England. And this, not only because such operation has not an effect peculiar to this state; but also because judge Tucker, has noticed abundantly, what might be said on this head. The code of each state, so as it is affected by the constitution, or an act of congress, is lex. sub graviore lege, subject to a higher law; and must, so far as it goes, be changed by it. This observation is to be understood as going no farther than acts of congress within the outward groove or orbit of the constitution. I cannot say that I have examined minutely the valuable commentaries of that civilian, so as to be able to point out mistakes, if any had occurred to me; but a learned jurist has given me a note of a few oversights, or miscontructions, as they appeared to him, which are to be met with in the comments of judge Tucker, in his view of the constitution of the United States. If this publication, which is not very probable, should at any time reach the notice of that judge, he will not be displeased with having it suggested to him, that he might reconsider. It is well known that judge Blackstone availed himself of the observations of others, Junius, Priestly, Furneau, &c. to change some things that had been given in the first edition of his commentaries; and many alterations have been made which would appear to have occurred to his own reflection. I could point out one particular of law, which he had stated so equivocally in the first edition, as to mislead; but which in his later editions he has corrected. It occurs 2 Com. 252. Treating of the qualified property of the bailor and bailee, << may all of them vindicate, says he, in their own right, this their possessory interest against any stranger or third person, according to their respective interests." I have known very learned counsel to contend from this authority, that neither of them could recover otherwise than according to their respective interests. It would seem to have occurred to the commentator that it was equivocal, and he has struck out the expression, "according to their respective interests." Comparing small things with great, if it might be allowable to mention what I have written, there will be inaccuracies which may occur to myself, and much more to the learned of the profession in the matters of this publication, which I will have no pride to oppose, but the contrary, in hearing of them being pointed out. The only consideration is, or rather fear, that not many learned in the law, and capable, will do me the honour to examine and to note the observations from reason, or from law, which may exist. With regard to the commentaries of judge Tucker, on the constitution of the United States, &c. the note of the learned jurist is as follows. "The passages in Tucker's Blackstone which have truck me as inaccurate, are the following. Tucker's Black. vol. 1. 181. The author states the cases in which he thinks that the judicial power of the United States is exclusively vested in the tribunals of the federal government, and enumerates them as follows: 1. All cases affecting ambassadors, other public ministers and consuls. NOTE. This does not seem accurate, for an ambassador, &c. may sue in the state courts if he please, though he may not be sued there. Therefore the power is not entirely exclusive. 2. All cases of admiralty and maritime jurisdiction. NOTE. If the author meant all cases which are exclusively of admiralty jurisdiction, such as prize and its incidents, he is right, but if he meant all cases of admiralty jurisdiction generally, including bottomry, mariner's wages, &c. he does not seem correct, for in all these cases there is a remedy at the common law, different in its form, indeed, and sometimes in its effects, from admiralty process, but still the common law takes cognizance of the subject matter, and the jurisdiction of the court of admiralty in such cases is even said to be only permissive, and ex rei necessitate et favore legis. 3. 4. 5. Seem correct. 6. Controversies to which the United States are a party. NOTE. There appears nothing to prevent the United States from suing, though they may not be sued in a state court, nor indeed in any court, directly, and indirectly it is not clear that they may not be sued through their officers in a state court; I believe there have been instances (I think, in New-York) of a collector sued in a state court for torts committed under colour of his official duty. Of this, however, I am not sure, but upon the whole, Mr. Tucker's assertion seems too broad. Again the decision of the chief justice on the habeas corpus in Blight's case, shews that state courts have taken cognizance of controversies to which the United States are real parties; for Blight's confinement was by the authority of a federal court, and the United States, or what is the same, the authority of its judiciary was clearly involved." On the construction of Art. 4. Sec. 4. of the Constitution of the United States. "The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and, on application of the legisla ture, or, of the executive, (when the legislature cannot be convened) against domestic violence." This would seem to be an amplification of the power given to congress under head 15, of Sec. 8. Article 1. of the constitution, viz. "to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions." Under article 1. sec. 8. 15. The congress shall have power to provide for calling forth, &c. Under article 4. sec. 4. The United States shall guarantee, &c. The first gives the pow er to do; the last enjoins the doing in certain cases, which must, in substance, fall under the first head, at least so far as respects the protecting against invasion; and against domestic violence. But, on a question put by governor Strong, of Massachusetts, to the justices of the supreme court of that state, these justices certified an opinion, inter alia, that, in calling forth the militia, "no power is given either to the president, or to the congress to determine that either of the said exigencies does in fact exist." Masachusetts Reports, 449. But it would seem to me unavoidably deducible, from sec. 4. artiele 4, that there is but one case where it is left to the legisla ture, or, to the executive, where it cannot be convened, to exercise the right of determining as to the exigency in which the militia may be called forth, and that is, " to protect against domestic violence." That is distinguishable clearly in section 4. article 1, from the guarantee of a republican: form of government, and protecting against invasion. For, it is on application, &c. that protection against domestic violence is to be given. The other cases are left out of this clause, and precede it, and there is no application in such cases specified. The justices of Massachusetts would therefore appear to me to be erroneous in their opinion, that the |